Duke A. McDaniel
John
David Judy, III
Petersburg, West Virginia
Judy
& Judy
Attorney for the Appellee
Moorefield,
West Virginia
Attorney
for the Appellant

JUSTICE ALBRIGHT delivered the Opinion of the Court.

CHIEF JUSTICE McGRAW concurs and reserves the right to file a concurring
opinion.

JUSTICE DAVIS and JUSTICE MAYNARD concur and reserve the right to file a
separate opinions.

SYLLABUS BY THE COURT

1. Where, in the trial
of an action at law before a jury, the evidence is conflicting, it is the
province of the jury to resolve the conflict, and its verdict thereon will
not be disturbed unless believed to be plainly wrong. Syl. Pt. 2, French
v. Sinkford, 132 W.Va. 66, 54 S.E.2d 38 (1948).

2. The provisions of West
Virginia Code § 50-5-12(d)(2) (1994) set the only jurisdictional
timeliness parameters of a de novo appeal to a circuit court of a civil
case from a magistrate court. Those parameters address a failure to prosecute,
not a delay in the circuit court's ruling on the appeal.

3. The time periods specified
in Rule 16.11(b) of the Trial Court Rules for the disposition by circuit courts
of appeals from magistrate courts are administrative, not jurisdictional.

4. This Court, on
its own motion, will take notice of lack of jurisdiction at any time
or at any stage of the litigation pending therein.
Syl. Pt. 2, In re Boggs Estate,
135 W.Va. 288, 63 S.E.2d 497 (1951).

5. A party to a controversy
in any circuit court may obtain from this Court an appeal in any civil case
when there is an order granting a new trial and such appeal may be taken from
the order without waiting for the new trial to be held. Syl. Pt. 1, Hundley
v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967).

6. The West Virginia Supreme
Court of Appeals is vested with jurisdiction to hear an appeal from a circuit
court judgment reversing the judgment of the magistrate court in a matter
heard there on the merits, notwithstanding the fact that the circuit court
order also undertakes to remand the case to the magistrate court for a new
trial or other proceedings. Insofar as Ritchie County Bank v. Ritchie County
Commission, 65 W.Va. 208, 63 S.E.1098 (1909), and its progeny may be read
to hold otherwise, they are overruled.

7. West Virginia Code §
46A-6-107 (1974), part of the West Virginia Consumer Credit and Protection
Act, renders void any exclusion, modification, or attempted limitation of
warranties or legal remedies for breach of warranties, express or implied,
arising in sales of goods and chattels to consumers.

8. The provisions of of
section 107, article 6, the West Virginia Consumer Credit and Protection Act,
relating to sales of goods to consumers, are equally applicable to sales of
new goods and to sales of used goods.

9. A party may only assign
error to the giving of instructions if he objects thereto before arguments to
the jury are begun stating distinctly the matter to which he objects and the
grounds of his objection. Syl. Pt. 1, Roberts v. Powell, 157 W.Va.
199, 207 S.E.2d 123 (1973).

Albright, Justice:

John C. Welton, Jr., (hereinafter
Appellant) appeals a final order of the Circuit Court of Grant
County reversing a jury verdict returned in favor of Appellant in magistrate
court in an action involving the purchase of a used motor vehicle by Appellant
from Keith Wolfe, dba Petersburg Motor Company (hereinafter Appellee).

This action was commenced
when Appellee filed suit against Appellant in the Magistrate Court of Grant
County to recover sums allegedly owed Appellee on an open account, including
amounts for repairs to the used motor vehicle Appellant had purchased from
Appellee and repairs to one or more other motor vehicles owned by Appellant.
Appellant counterclaimed for damages on the theory that Appellee had failed
to honor implied warranties of merchantability and fitness for purpose applicable
to the used motor vehicle. The matter was tried to a jury. The jury rejected
the claim of Appellee and returned a verdict in favor of Appellant. A judgment
was awarded by the magistrate court for the sum of the verdict,
(See footnote 1) attorney fees in favor of Appellant, costs and interest.

Appellee appealed the magistrate
court judgment to the circuit court. After considering briefs by both parties,
the circuit court, by an order entered February 28, 2000, reversed the magistrate
court judgment and remanded the case for further proceedings. It is from that
February 28, 2000, circuit court order that Appellant now appeals, assigning
numerous errors.

Appellant contends that
the circuit court erred by failing to dismiss the appeal below when Appellee
did not file a petition of appeal and that the circuit court lost
jurisdiction by failing to conclude the appeal within specified time limits.
Appellant further contends that the lower court erred in finding that an implied
warranty did not apply to a vehicle sold under an express warranty and refusing
to apply certain provisions of the Consumer Credit and Protection Act (W.Va.
Code § 46A-6-101, et seq. (1974)) to the case. Appellant additionally
contends that the lower court erred in finding that the verdict of the jury
was contrary to the law and evidence, in reversing the verdict, and in remanding
to the magistrate court for further proceedings.

We find that Appellee perfected
his appeal below and that the circuit court had and retained jurisdiction
to hear the appeal. We further find, contrary to an assertion by Appellee,
that this Court has jurisdiction to consider this appeal. However, we further
find that the circuit court committed error in its reversal of the judgment
of the magistrate court.

Accordingly, we reverse the judgment of the circuit court and remand for
proceedings consistent with this opinion.

I. FACTS

On February 6, 1999, after performing
a test-drive, Appellant purchased a used GMC Jimmy truck from Appellee,
the owner of Petersburg Motor Company. The Odometer Statement furnished Appellant
at the time of purchase disclosed that the vehicle had been driven 85,904 miles
to that time. Many of the remaining facts regarding the vehicle are in dispute.
According to Appellant, when he first noticed a problem with the vehicle's transmission,
he took the vehicle to Appellee's place of business for repairs on February
8, 1999. (See
footnote 2) Appellant further asserts that on February 13,
1999, and again on February 26, 1999, he returned the vehicle to Appellee for
repairs to the transmission. (See footnote 3) In contrast to Appellant's
assertions, Appellee expressly denied in his answer to Appellant's counterclaim
that there were any problems with the transmission when the vehicle was sold.
(See footnote 4) Appellee also stated in his answer that the records of Petersburg Motor Company did not show
that the vehicle was taken back to Petersburg Motor Company on either February
26 or February 27.
(See footnote 5) Notwithstanding this denial by Appellee,
both parties agree that on or about February 27, 1999, Appellee wrote
on a business card: 2/27/99 Warrant to John Welton 6 mo or 10,000 mi
30/70 warranty. He then signed the card and gave it to Appellant.
(See footnote 6)

Both parties agree that
in the period between March 20 and March 23, 1999, Appellant brought the GMC
Jimmy to Appellee for service. Appellant claims that this constituted another
attempt to repair the transmission; Appellee claims that the service visit
related to the installation of a part unrelated to the transmission, purchased
and furnished by Appellant. The parties also agree that on May 19, 1999, the
vehicle was brought in to

Appellee's business for repairs, including checking the transmission, addressing
an electrical problem, and replacing one or two solenoids. The mileage odometer
at that time read 95,037.

On May 25, 1999, Appellant
alleged that the transmission failed outright and the GMC Jimmy had to be
towed to Grant County from Uniontown, Pennsylvania, at a cost of $140.00.
Appellant asserts that he then took the truck to another car dealership and
that they were also unable to repair the transmission. (See footnote 7) Appellant again took the
vehicle to Appellee's business for repair of the transmission on June 18,
1999. (See
footnote 8) Apparently at the request of Appellant's father,
a Mr. Jack Welton, the transmission was ultimately replaced by Appellee on
June 25, 1999. The work receipt for that work reflected a total bill of $1,439.11
and contains the notations, Bill Jack Welton, and Jack Welton
Will [be] Responsible for Bill. The mileage recorded on the vehicle's
odometer at that time was stated on the bill to be 96,349 miles. Appellant
took the vehicle to Appellee for repair one last time, on July 8, 1999. According
to the work receipt, a wire was found not to be making contact. A further
notation suggested that the problem apparently occurred when Don installed
transmission or when Ed spliced wire. There was no charge for this last
repair.

Appellant made payments toward
his balance on his open account with Appellee at least through August of 1999.
The open account included, as mentioned, some charges incurred for another vehicle
or vehicles before the purchase of the GMC Jimmy. (See footnote 9) On October 18, 1999, Appellee
filed his complaint in the Magistrate Court of Grant County, seeking judgment
for an alleged balance on that open account of $2,128.81 plus costs. In due
course, Appellant filed an answer and counterclaim, and the matter was then
heard before a jury, resulting in a judgment in favor of Appellant for the sum
of $1,000.00, plus costs, including attorney fees, and interest.

II. STANDARD OF REVIEW

As this Court stated in Phillips
v. Fox, 193 W.Va. 657 at 661, 458 S.E.2d 327 at 331(1995), [i]n reviewing
challenges to the findings and conclusions of the circuit court, we apply a
two-prong deferential standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard, and we review the
circuit court's underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.

Furthermore,
regarding jury verdicts, in syllabus point two of French v. Sinkford,
132 W.Va. 66, 54 S.E.2d 38 (1948), we stated: Where, in the trial
of an action at law before a jury, the evidence is conflicting, it is the province
of the jury to resolve the conflict, and its verdict thereon will not be disturbed
unless believed to be plainly wrong. Id.

III. DISCUSSION

A. Jurisdiction of the Circuit Court

1. Lack of Notice of Appeal

Appellant argues that the circuit
court had no jurisdiction to hear this appeal from the Magistrate Court of Grant
County because Appellee failed to file a petition of appeal as required
by West Virginia Code § 50-5-12(c) (1994),
with respect to magistrate court civil cases heard by a jury, and West Virginia
Code § 50-5-12(d) (1994),
with respect to magistrate court civil cases heard without a jury. To begin
our review of this question, we look first at the provisions of our rules for
the commencement of appeals from magistrate courts found in Rule 18 of the Rules
of Civil Procedure For Magistrate Courts.

Rule 18 contemplates that an
appeal from magistrate court shall be commenced by filing a [n]otice of
appeal in the magistrate court within 20 days after judgment,
(See footnote 10) the posting of an appeal bond (See footnote 11) and the payment to the magistrate
court clerk of the circuit court filing fee for the appeal. The record discloses
that Appellee did not file a document entitled Notice of Appeal,
as contemplated by Rule 18. Appellee did, however, file an appeal bond in magistrate
court on a form prepared by this Court for use in magistrate court appeals.
It was signed by Appellee and states that [t]he . . . plaintiff . . .
wishing to exercise the right to appeal the judgment in this case, gave
bond in the amount required to effect appeal. The bond was accompanied by payment
to the magistrate court of the circuit court filing fee for an appeal, which
was duly transmitted to the circuit court. The record does not contain a separate
document purporting to be a notice of appeal under Rule 18 of the
Rules of Civil Procedure For Magistrate Courts, and we take judicial notice
of the fact that this Court does not provide the magistrate courts with a separate
form for giving a notice of appeal. (See footnote 12) In these circumstances, the
filing of the appeal bond on the form provided by this Court, clearly stating that the party does so
wishing to exercise the right to appeal the judgment in this case,

substantially fulfills the Rule 18 requirement for the filing of a notice
of appeal.
(See footnote 13) We conclude that upon the filing
of the bond and payment to the magistrate court of the circuit court filing
fee, the appeal was properly commenced.

2. Absence of a Petition for Appeal

As noted, Appellant's stated
objection is that Appellee failed to file a Petition for Appeal
in circuit court. West Virginia Code § 50-5-12(c) (1994) appears to contemplate
that when the matter was heard in magistrate court by a jury, a party wishing
to appeal to the circuit court will file in circuit court a petition setting
forth the grounds for appeal and a designation of the portions of the
record below deemed material. W.Va. Code § 50-5-12(c) (1994). Opposing
parties may supplement Appellant's designation of the record, and the circuit
court may by general or special order limit the record to be brought up from
the magistrate court.
(See footnote 14)

In the case before us, Appellee
did not file a document in the circuit court denominated a petition setting
forth grounds or a petition for appeal at any time. Rather,
after the entry of an order by the circuit court setting forth a briefing schedule
for the parties, each of the parties set forth their grounds for and against
the appeal in those briefs, and the circuit court reached and published its
decision.

The circuit court had earlier
determined, by order, that Appellee's appeal from the magistrate court judgment
was to be heard de novo, a disposition appropriate only to a civil
case heard by the magistrate court without a jury. W.Va. Code §50-5-12(d)
(1994). Since the matter was actually heard in magistrate court by a jury,
that circuit court order was in error. (See footnote 15) In matters heard in magistrate
court without a jury, West Virginia Code § 50-5- 12(d) (1994) contemplates
that the appellant file in the circuit court a petition for appeal and
trial denovo. In appeals de novo, the magistrate
court record before the circuit court consists only of the exhibits, papers,
and requests filed below, excluding the testimony taken and trial
proceedings had in magistrate court. W.Va. Code §50-5-12(d)(1) (1994).

Since the circuit court _ at
least initially _ treated this appeal as de novo, West Virginia Code
§ 50-5-12(d) (1994) may fairly be considered to be the law applicable to
this case with respect to the necessity of filing of a petition for appeal,
despite the reality that the case was heard in magistrate court before a jury.
Giving due regard to the entry of the erroneous order by the circuit court,
neither of the parties here may have been fairly alerted to any obligation to
file a designation or supplemental designation of the record to be brought from
the magistrate court. Moreover, since there is no time specified for the filing
of a petition of appeal under either West Virginia Code § 50-5-12(c)
or (d) (1994), this Court is of the opinion that the timely filing by the parties
of their respective briefs, setting forth their appeal grounds and responses
pursuant to the order of the circuit court, satisfied the statutory requirements
for such a petition for appeal. We perceive that the real office of such a petition
for appeal is to advise the circuit court and opposing parties of the legal
and factual bases of the appeal. It appears that the briefs required by the
order of the circuit court substantially accomplished that purpose in this case.
(See footnote 16)

3. Lack of Timely Disposition of the Appeal

Appellant next argues that the
circuit court erred in failing to dismiss the appeal when it was not concluded
within 90 days after being regularly placed upon the docket of the circuit
court, as required by West Virginia Code § 50-5-12(c)(6) (1994) and
Rule 16.11(b) of the West Virginia Trial Court Rules in regards to an appeal
of a civil case from a magistrate court in a case heard before a jury. Appellant
argues that the circuit court has no jurisdiction to grant relief in the appeal
after the expiration of that 90-day period and urges us to literally enforce
the provisions of West Virginia Code § 50-5-12(c)(6) (1994).
(See footnote 17)

a. De Novo Appeal

In the circumstances
here, we do not believe that the circuit court's failure to timely act creates
a jurisdictional defect. Because the circuit court treated this appeal as de
novo, at least initially, we look first at West Virginia Code § 50-5-12(d)
(1994), and the provisions of Rule 16.11(b) of the Trial Court Rules requiring
that a final judgment order in a de novo civil appeal from a magistrate
court shall be entered within six (6) months of the receipt of the magistrate
court file by the clerk of the circuit court. T.C.R. 16.11(b).

The record discloses that the
clerk of the circuit court received the magistrate court file in this case on
July 21, 2000. Therefore, the entry of the judgment order of the circuit court
order on February 28, 2001, clearly did not meet the six-month time frame specified
by Rule 16.11(b) of the Trial Court Rules for de novo appeals. The question
now is whether that time frame is jurisdictional.

The Legislature is vested
with the sole authority to define the appellate jurisdiction of circuit courts
in cases originating in the magistrate courts. W.Va. Const. art. VIII, §
6. West Virginia Code § 50-5-12(d)(2) (1994) speaks expressly only to
when a civil appeal de novo is stale because of a failure to prosecute.
That statute requires that if such an appeal is not brought on for hearing
before the end of the second term after the appeal is docketed in the circuit
court, it shall be considered abandoned in the absence of cause being timely
shown and that any dismissed appeal shall not be reinstated after the close
of the next regular term. We are of the opinion that the provisions of West
Virginia Code § 50-5- 12(d)(2) (1994) set the only jurisdictional timeliness
parameters of a de novo appeal to a circuit court of a civil case from
a magistrate court. Those parameters address a failure to prosecute, not a
delay in the circuit court's ruling on the appeal. With respect to Rule 16.11(b)
of the Trial Court Rules, we note that it is a part of the standards established
by this Court to promote the timely disposition of cases and does not operate
to limit the jurisdiction of the circuit courts. (See footnote 18) We conclude that the time
periods specified in Rule 16.11(b) of the Trial Court Rules for the disposition
by circuit courts of appeals from magistrate courts are administrative, not
jurisdictional.

Applying the two-term jurisdictional
test in West Virginia Code § 50-5- 12(d)(2) (1994), we note first that
Rule 2.21 of the Trial Court Rules fixes the terms of the Circuit Court of
Grant County as commencing in the months of March, July and November. The
order fixing times for the filing of briefs was entered on or about October
30, 2000, and the briefing schedule concluded by January 20, 2001. Clearly,
the appeal was brought on by the parties for hearing well within the time
limits fixed by West Virginia Code § 50-5- 12(d)(2) (1994).

b. Appeal of a Case Tried Before a Jury

We turn next to consideration
of West Virginia Code § 50-5-12(c) (1994), the statutory provision actually
applicable to this appeal of a civil case heard in magistrate court with a jury.
That section specifies, as does Rule 16.11(b) of the West Virginia Trial Court
Rules, that appeal proceedings in a case heard before a jury shall be concluded
in the circuit court within 90 days after the case is docketed there. However,
we find no express direction in section 12(c) that the 90-day limit is to be jurisdictional. Section
12(c), unlike Section 12(d), is simply silent on the jurisdictional question.
We cannot conclude that there was any intention by the Legislature to deprive
the circuit courts of jurisdiction in a civil appeal of a case heard by a
jury 90 days after the docketing of the appeal. And, as in the matter of cases
to be appealed to the circuit court de novo, Rule 16.11(b) of the Trial
Court Rules must be seen as administrative, not jurisdictional. Accordingly,
we conclude that the circuit court retained jurisdiction to hear and decide
this case when on February 28, 2000, it entered the order here appealed.

B. Jurisdiction of This Court

We move next to the authority
of this Court to hear the matter, addressing the substance of a motion filed
here by Appellees after this appeal was docketed by this Court, asserting that
we have no jurisdiction of the appeal because the circuit court remanded the
matter to a lower court with directions. We consider challenges to our jurisdiction
even when not raised as an assignment of error. As set forth in syllabus point
two of In re Boggs Estate, 135 W.Va. 288, 63 S. E.2d 497 (1951), [t]his
Court, on its own motion, will take notice of lack of jurisdiction at any time
or at any stage of the litigation pending therein.
The issue addressed by the motion
is essentially the same as that posed in another case decided this term, Foster
v. Sakhai, No. 29339, ___ W.Va. ___, ___ S.E.2d ___ (2001). There the Appellee claimed that this Court lacked jurisdiction to
hear an appeal of an order granting a new trial in the circuit court because
the Legislature had amended a statute addressing the jurisdiction of this
Court, removing a provision, inter alia, expressly authorizing appeals
of orders granting a new trial. In Foster, this Court determined that
the Legislature could not have intended to remove from the jurisdiction of
this Court certain matters over which this Court has historically exercised
jurisdiction and matters over which this Court has authority by virtue of
constitutional provisions. (See footnote 19) We agree with the reasoning
employed in Foster.

Since the adoption of the
1974 Judicial Reorganization Amendment, the constitution has contained the
following regarding this Court's appellate jurisdiction:

The
court shall have appellate jurisdiction in civil cases at law where the matter
in controversy, exclusive of interest and costs, is of greater value or amount
than three hundred dollars unless such value or amount is increased by the
legislature; in civil cases in equity; in controversies concerning the title
or boundaries of land; in proceedings in quo warranto, habeas corpus, mandamus,
prohibition and certiorari; and in cases involving personal freedom or the
constitutionality of a law. It shall have appellate jurisdiction in criminal
cases, where there has been a conviction for a felony or misdemeanor in a
circuit court, and such appellate jurisdiction as may be conferred upon it
by law where there has been such a conviction in any other court. In criminal
proceedings relating to the public revenue, the right of appeal shall belong
to the State as well as to the defendant. It shall have such other appellate jurisdiction, in both civil
and criminal cases, as may be prescribed by law.

The
court shall have power to promulgate rules for all cases and proceedings,
civil and criminal, for all of the courts of the State relating to writs,
warrants, process, practice and procedure, which shall have the force and
effect of law.

W.Va. Const. art. VIII, § 3.

Until 1998, the legislative
enactment related to this Court's jurisdiction read as follows:

A
party to a controversy in any circuit court may obtain from the supreme court
of appeals, or a judge thereof in vacation, an appeal from, or a writ of error
or supersedeas to, a judgment, decree or order of such circuit court in the
following cases: (a) In civil cases where the matter in controversy, exclusive
of costs, is of greater value or amount than one hundred dollars, wherein
there is a final judgment, decree or order;
(b)
In controversies concerning the title or boundaries of land, the probate of
a will, or the appointment of a personal representative, guardian, committee
or curator;
(c)
Concerning a mill, road, way, ferry or landing;
(d)
Concerning the right of a corporation, county or district to levy tolls or
taxes;
(e)
In any case of quo warranto, habeas corpus, mandamus or prohibition;
(f)
In any case involving freedom or the constitutionality of a law;
(g)
In any case in chancery wherein there is a decree or order dissolving or refusing
to dissolve an injunction, or requiring money to be paid, or real estate to
be sold, or the possession or title of property to be changed, or adjudicating
the principles of the cause;
(h)
In any case where there is a judgment or order quashing or abating, or refusing
to quash or abate, an attachment;
(i)
In any civil case where there is an order granting a new trial or rehearing,
and in such cases as appeal may be taken from the order without waiting for
the new trial or rehearing to be had;
(j)
In any criminal case where there has been a conviction in a circuit court or
a conviction in an inferior court which has been affirmed in a circuit court.
Appeals
shall not lie under subdivisions (g), (h) and (i) where pecuniary interests
only are involved, unless the amount in controversy, exclusive of costs, exceeds
one hundred dollars.

W.Va. Code § 58-5-1 (1925) (Repl. Vol. 1997).

In its 1998 amendment of
West Virginia Code § 58-5-1, the Legislature elected to address only
sub-section (a) of the former enactment, relating to the appeal of final orders
in civil cases, as follows:

A
party to a civil action may appeal to the supreme court of appeals from a
final judgment of any circuit court or from an order of any circuit court
constituting a final judgment as to one or more but fewer than all claims
or parties upon an express determination by the circuit court that there is
no just reason for delay and upon an express direction for the entry of judgment
as to such claims or parties. The defendant in a criminal action may appeal
to the supreme court of appeals from a final judgment of any circuit court
in which there has been a conviction or which affirms a conviction obtained
in an inferior court.

W.Va. Code § 58-5-1 (1998) (Supp. 2001).

As enacted, the 1998 amendment
operates only to clarify the ability to appeal civil actions in which final
judgments have been entered or partial final judgments have been entered pursuant
to Rule 54(b) of the Rules of Civil Procedure, and to remove the requirement
that an appealable civil action involve any particular amount in controversy.
In its1998 amendment of West Virginia Code § 58-5-1, the Legislature acknowledged
that the former provisions of that section were not in conformity with
rules of appellate procedure promulgated by the supreme court of appeals,
but elected not to address with particularity any of the myriad of matters other
than appeals of final orders previously addressed in that section. 1998 W.Va.
Acts ch. 110. Some of those other matters had been addressed in the statute
for decades. In particular, the ability to appeal orders granting new trials
has been a part of our statutory law since 1868. (See footnote 20) Instead, the Legislature left
these matters to be dealt with under the grant of jurisdiction and rule-making
authority contained in the constitution. W.Va. Const. art. VIII, § 3.

In his concurring opinion
in State ex rel. Allen v. Bedell, 193 W.Va. 32, 454 S.E.2d 77 (1994),
Justice Cleckley called upon the Legislature to amend West Virginia Code §58-5-1
to provide for ordinary interlocutory review whenever the
question presented is either of great practical importance in a particular
case or of general importance as a matter of procedural law. Id. at 39, 454 S.E.2d at 84. Unfortunately,
the Legislature did not heed that advice in writing its 1998 amendments, preferring
to address only final judgments and partial final judgments. Notwithstanding
this Court's agreement with former Justice Cleckley that the Legislature should
both recognize and expressly provide for flexible interlocutory review within
West Virginia Code § 58-5-1, we share the view articulated in Foster
that this Court's jurisdiction to consider interlocutory appeals of orders
granting a new trial is encompassed within the authority granted under the
state constitution for appellate review of both cases of law and cases of
equity. W.Va. Const. art. VIII, § 3.

We
are also mindful of the action of the Legislature in giving the magistrate courts
the status of a court of limited record in civil cases heard by
a jury. See W.Va. Code § 50-5-8(e) (1994). In doing so, the Legislature
provided that, upon appeal to a circuit court of such case, the appeal was to
be on the record made below and the circuit court, rather than holding a trial
de novo as in the past, is to review the case for errors in law according
to specific standards set out by statute. See W.Va. Code § 50-5-12(c)(3)
(1994). (See
footnote 21) In so doing, the Legislature has clothed the magistrate courts in such cases with a status
closely akin to the court of record of limited jurisdiction created
and implemented under the former provisions of Article VIII, § 19 of
the West Virginia Constitution and West Virginia Code § 58-4-1 (1931),
et seq. While the cited constitutional provisions have been repealed,
the related statutory provisions remain on the books. In West Virginia Code
§ 58-4-17 (1931), the Legislature had provided with respect to cases
originally heard in such court of limited jurisdiction and subsequently
appealed to circuit courts, that an appeal would lie to this Court from any
action of the circuit court in affirming or reversing any judgment, decree
or order of such court of limited jurisdiction. W.Va. Code § 58-4-17
(1931). We read that language as treating as an appealable order any
action of the circuit court reversing the judgment of an inferior court,
even though the order reversing the judgment undertook to remand the case
to the inferior court for a new trial or other proceedings. In a similar light,
it appears that an order of a circuit court reversing a judgment of a magistrate
court in an action heard there on its merits constitutes an appealable order, notwithstanding
any language in the circuit court order undertaking to remand the case to
the magistrate court for a new trial or other proceedings.

In light of the foregoing,
we conclude that this Court is vested with jurisdiction to hear an appeal
from a circuit court judgment reversing the judgment of the magistrate court
in a matter heard there on the merits, notwithstanding the fact that the order
also undertakes to remand the case to the magistrate court for a new trial
or other proceedings. Insofar as Ritchie County Bank v. Ritchie County
Commission, 65 W.Va. 208, 63 S.E. 1098 (1909), and its progeny may be
read to hold otherwise, they are overruled.

C. The Substantive Issues

1. Warranties

First, Appellant contends that
the circuit court erred when it ruled that no implied warranties applied to
the motor vehicle at issue, because Appellee had furnished an express warranty.
When Appellee sold Appellant the motor vehicle at issue, the following express
limited warranty, entitled Buyers Guide Warranty was
applied to the sale:

LIMITED WARRANTY. The dealer
will pay 30% of the labor and 30% of the parts for the covered systems that
fail during the warranty period. Ask the dealer for a copy of the warranty document
for a full explanation of warranty coverage, exclusions, and the dealer's repair
obligations. Under state law, 'implied warranties' may give you even more
rights.

SYSTEMS COVERED: Transmission, Engine, Differential DURATION: 30
days or 1000 miles whichever comes first. No outside invoices will be accepted
as reimbursements. All service must be done in our dealer service area. (Emphasis
added).

Below, the circuit court
held that this express warranty, and its later expansion on the back of Appellee's
business card, prevented Appellant from asserting the benefit of any implied
warranties. In making its ruling on this issue, the circuit court apparently
relied upon the provisions of West Virginia Code § 46-2-316 (1963), stating
rules for the exclusion or modification of warranties where such is proper,
which states, in pertinent part:
(2)
Subject to subsection (3), to exclude or modify the implied warranty of merchantability
or any part of it the language must mention merchantability and in case of
a writing must be conspicuous, and to exclude or modify an implied warranty
of fitness the exclusion must be by writing and conspicuous. Language to exclude
all implied warranties of fitness is sufficient if it states, for example,
that There are no warranties which extend beyond the description on
the face hereof.

W.Va. Code § 46-2-316 (1963).

It appears that the circuit
court did not take into account the effect of West Virginia Code § 46A-6-107
(1974), part of the West Virginia Consumer Credit and Protection Act, which
renders void any exclusion, modification, or attempted limitation of warranties or legal remedies for breach of warranties, express or implied,
arising in sales of goods and chattels to consumers , as follows:

Notwithstanding
any other provision of law to the contrary with respect to goods which are
the subject of or are intended to become the subject of a consumer transaction,
no merchant shall:

(1)
Exclude, modify or otherwise attempt to limit any warranty, express or implied,
including the warranties of merchantability and fitness for a particular purpose;
or
(2)
Exclude, modify or attempt to limit any remedy provided by law, including
the measure of damages available, for a breach of warranty, express or implied.
Any
such exclusion, modification or attempted limitation shall be void.

W.Va. Code § 46A-6-107 (1974).

Clearly, the circuit court
was wrong in applying the general provisions of the Uniform Commercial Code
without taking into account the special provisions of the West Virginia Consumer
Credit and Protection Act prohibiting the exclusion or modification of implied
warranties in consumer sales transactions.

Appellant next complains
that the circuit court erred by also ruling that the provisions of West Virginia
Code § 46A-6-101 (1974), et seq., including § 46A-6-107 (1974),
could only apply to new vehicles, not used ones. We agree. That Code section,
drawn as noted from the West Virginia Consumer Credit and Protection Act,
applies to sales to consumers in a consumer transaction. West Virginia Code
§ 46A-6-102(d) (1996), defines Sale to include any sale, offer for sale or attempt to
sell any goods for cash or credit. West Virginia Code § 46A-6-102(b)
(1996), defines Consumer as a natural person to whom a sale
or lease is made in a consumer transaction, and a 'consumer transaction' means
a sale or lease to a natural person or persons for a personal, family, household
or agricultural purpose. We find no basis in these definitions, elsewhere
in the statute or in case law, to apply the act only to new goods
or to exempt usedgoods from the prohibition in the statute against
waiving or modifying implied warranties in consumer sales. Accordingly, we
conclude that the provisions of section 107, article 6, of the West Virginia
Consumer Credit and Protection Act, relating to sales of goods to consumers,
are equally applicable to sales of new goods and to sales of used goods.

2. Instructions

The court below held Instruction
Nos. 1, 4 and 9 to be erroneous statements of the law. We note first that Appellee
here did not object in magistrate court to Instruction No. 1. Accordingly, we
are of the opinion that any error in that instruction was waived. As we stated
in syllabus point one of Roberts v. Powell, 157 W.Va. 199, 207 S.E.2d
123 (1973), [a] party may only assign error to the giving of instructions
if he objects thereto before arguments to the jury are begun stating distinctly
the matter to which he objects and the grounds of his objection. Id.
In that light, the circuit court had no basis for finding reversible error
with regard to Instruction No. 1.

Instruction No. 4 was given,
over Appellee's objection, as follows:

A warranty
of merchantability is not excluded with respect to any defect which the examination
by the Defendant would not reasonably disclose at the time of purchase. Any
defects determined by the Defendant to have existed at the time of purchase,
found within a reasonable time after purchase are subject to a warranty of merchantability.

Instruction No. 9 was also given, over Appellee's objection, as follows:

If you
find, by a preponderance of the evidence, that a defect existed in the transmission
of the vehicle, the subject of this action, at the time that the vehicle was
sold by the Plaintiff to the Defendant, then you may find that the Plaintiff
was required to repair the vehicle without cost to the Defendant pursuant to
the implied warranty of merchantability and fitness required pursuant to West
Virginia law.

Appellee's articulated basis
for objecting to these two instructions was his erroneous belief that no implied
warranties applied to Appellant's purchase of the GMC Jimmy because an express
warranty was given and because there was no special reliance by Appellant
on Appellee's skill and judgment. From the circuit court order reversing the
magistrate court it clearly appears that the ruling of the circuit court rejecting
these two instructions also proceeded from the belief that no implied warranties
applied to the sale because a limited express warranty had been given and
because the Consumer Credit and Protection Act did not apply to the sale of
used vehicles. As we have noted, the implied warranties did apply to Appellant's
purchase. Therefore, there is no merit to Appellee's expressed objections
to the instructions.

While somewhat abstract, the
instructions appear to have adequately advised the magistrate court jury of
the issues to be decided regarding the implied warranties and may be read as
correct statements of the law. In view of the fact that Appellee offered no
alternative instructions that might have more concretely applied the law to
the facts, in light of the fact that the jury was adequately advised of the
law to apply, and in view of the fact that the circuit court proceeded from
an incorrect view of the law of implied warranties, we believe the circuit court
erred in designating these two instructions as a basis for reversing the judgment
of the magistrate court and the verdict upon which it was based.
(See footnote 22)

We have previously
stated in Skaggs v. Elk Run Coal Co., Inc.,198 W.Va. 51 at 70, 479 S.E.2d
561 at 580, (1996), that

[t]o challenge jury instructions
successfully, a challenger must first demonstrate the charge as a whole created
a substantial and ineradicable doubt about whether the jury was properly guided
in its deliberations. Second, even if the jury instructions were erroneous,
we will not reverse if we determine, based upon the entire record, that the
challenged instruction could not have
affected the outcome of the case.

Id. (footnote omitted).

3. Verdict Contrary To Law and Evidence

Finally, Appellant complains
that the circuit court erred in finding the verdict of the jury contrary to
the law and the evidence. This Court has articulated the burden for overturning
a jury verdict in syllabus point two of French v. Sinkford, supra.,
as follows: Where, in the trial of an action at law before a jury, the
evidence is conflicting, it is the province of the jury to resolve the conflict,
and its verdict thereon will not be disturbed unless believed to be plainly
wrong. Id.

It is readily evident that
the facts below were in substantial conflict. These facts were submitted to
the jury. The jury verdict strongly suggests that the jury weighed the opposing
evidence with care, understood the dispute and rendered a decision on the
evidence under the law as it was given to them in the instructions. We believe
the circuit court, operating under a substantial misapprehension as to the
applicable law, abused its discretion in setting aside the jury's verdict
and that its decision must, therefore, be reversed.

4. Attorney Fees

The circuit court found the
award of attorney fees by the magistrate court not to be appropriate. We disagree.
West Virginia Code § 46A-5-104 (1994) provides that [i]n any claim
brought under this chapter [46A] applying to illegal, fraudulent or unconscionable
conduct . . . the court may award all or a portion of the costs of the litigation,
including reasonable attorney fees . . . to the consumer. W.Va. Code §
46A-5-104 (1994). The actions of Appellee in denying redress to Appellant for failing to honor
the implied warranties, as found by magistrate court jury, justified the trial
court in awarding attorney fees.

D. Conclusion

For the reasons assigned, the judgment of the Circuit
Court of Grant County is reversed, and this matter is remanded to the circuit
court, with directions to enter judgment for Appellant under the power granted
by West Virginia Code § 50-5-12(c)(4)D (1994). That judgment shall be in
the principal sum awarded by the magistrate jury, the costs, including attorney
fees, awarded by magistrate court, pre-judgment interest and such sum as the
circuit court shall determine for costs, including reasonable attorney fees,
incurred by Appellant subsequent to the magistrate court judgment by reason
of the appeal to the circuit court and this Court, with interest from the date
of the circuit court judgment.

Appellant had counterclaimed for
an unspecified amount, which included all expenses incurred by him in the
attempted repair of the defective vehicle, annoyance, inconvenience, other
losses proven at trial, attorney fees and costs; the amount of the verdict
returned in his favor was $1,000.00, plus costs, including attorney fees.
Footnote: 2

Appellee's Exhibit 13 in magistrate
court is a statement of charges made by Appellee's dealership against Appellant.
It contains an entry for February 8, 1999, reading: seal, Atf, labor
GMC.
Footnote: 3

Appellee's Exhibit 13 also a contains
the following notation, dated February 15, 1999: credit account- 3.5
hours labor, and shows $50.00, with the notation: recd on account.
The record here suggests that Appellant owed some money to Appellee for work
on another vehicle or vehicles at the time of the purchase of the used GMC
Jimmy.
Footnote: 4

The record before us contains several
service order receipts for transmission work done on the subject vehicle by
Appellee prior to Mr. Welton's purchase of said vehicle.

In contrast to Appellee's assertions,
Appellant's Exhibit 2 in magistrate court, which purports to be a copy of
the owner's manual for the GMC Jimmy, contains the following entry: Date
2/26/99, Actual Mileage 87,490, Serviced By: flush trans/oil line.
Footnote: 6

At the time of purchase, Appellee
had given an express warranty to Appellant, committing to pay 30% of any parts
and labor charges incurred by reason of covered systems that fail
before 30 days had expired after purchase or the vehicle had been driven 1000
miles, whichever first occurred. (We note here that this express limited warranty
given Appellant by Appellee at the time of purchase of the vehicle advised
Appellant of possible implied warranties, as required by law.) It appears
that the card mentioned above served to extend that original express warranty
to the earlier of six months or 10,000 miles.
Footnote: 7

Country Chevrolet-Buick, Inc.,
charged Appellant $133.90. The receipt for their work indicated, in part,
hot transmission won't start off in 1st gear, and checked
codes with tech II trans. solinod stuck.
Footnote: 8

The work receipt for this visit
reflects that the vehicle's mileage was 95,989 and contains the following
work notations: ck trans, ck eng light, 3-4
shift soln. stuck off, replace soln, and 4 qt ATF
Footnote: 9

Plaintiff's Exhibit 13 from the
magistrate trial, Petersburg Motor Company's statement of account for Appellant,
appears to indicate a balance of $509.37 for repairs made prior to Mr. Welton's
purchase of the subject vehicle on February 6, 1999, although in Appellee's
brief filed with this Court he states that the prior bill was $689.70. From
February 8, 1999, through October 1999, Exhibit 13 shows that there were charges
of an additional $472.85, plus $20.23 in interest accrued, with credits and/or
payments of $312.75. The charges for the June 25, 1999, transmission replacement
do not appear on this statement.
Footnote: 10

After the 20-day period, but not
later than 90 days after the date of judgment, an appeal may be granted by
the circuit court upon a showing of good cause why the notice was not filed
in the magistrate court within the 20-day period. R.Civ.P.M.C. 18.
Footnote: 11

In State ex rel. Kern v. Santucci,
201W.Va. 144 at 147, 494 S.E.2d 911at 914 (1994), we held the posting of the
bond to be mandatory in order to effect an appeal.
Footnote: 12

In performance of administrative
responsibilities, staff of this Court have prepared and distributed to clerks
of courts several forms for use as aids in handling cases. It remains the
responsibility of parties litigant to see that the papers they file with the
courts are legally sufficient.
Footnote: 13

The current bond form should be
promptly revised to clearly state that it operates also as the required notice
of appeal. In the meantime, the bond form presently in use is sufficient
to constitute the required notice of appeal, although it is quite
proper for a party seeking an appeal to prepare and file a notice of
appeal separate from the bond form currently in use.
Footnote: 14

In his brief to this Court, Appellant
stated, [a]pparently, the Circuit Court ultimately determined that the
proceedings by the Circuit Court would be from the record . . . . In
light of the fact that the circuit court's order deciding the appeal disapproved
certain instructions, found the verdict below contrary to the law and the
evidence, and remanded the case to the magistrate court for further proceedings
_ all without a trial de novo in the circuit court _ it appears that the circuit
court did ultimately treat this appeal as one heard below by a jury, subject
to review on appeal only for errors of law. See W.Va. Code § 50-5-12(c)
(1994).
Footnote: 16

We urge persons desiring to prosecute
such appeals in the future to respect the express dictates of the statute,
particularly with regard to the differing requirements for appeals from magistrate
court judgments heard before a jury and those heard by the court alone.
Footnote: 17

See
1868 W.Va. Acts ch. 87 (specifying that order granting new trial is appealable
to West Virginia Supreme Court of Appeals).
Footnote: 21

West
Virginia Code § 50-5-12(c)(3)
(1994) states as follows:

(c)
In the case of an appeal of a civil action tried before a jury, the following
provisions shall apply:

* * *

(3)
After the record for appeal is filed in the office of the circuit clerk, the
court may, in its discretion, schedule the matter for oral argument or require
the parties to submit written memoranda of law. The circuit court shall consider whether the judgment
or order of the magistrate is:
(A)
Arbitrary, capricious, an abuse of discretion or otherwise not in conformance
with the law;
(B)
Contrary to constitutional right, power, privilege or immunity;
(C)
In excess of statutory jurisdiction, authority or limitations or short of
statutory right;
(D)
Without observance of procedure required by law;
(E)
Unsupported by substantial evidence; or
(F)
Unwarranted by the facts.
Footnote: 22

We limit our decision regarding these
instructions to the circumstances of this case. We do not encourage the use
of the exact language of these instructions in future litigation.